Tag Archives: Hobbs Act

Nasty, Brutish Week for the Hobbs Act… But a Ray of Sunshine, Maybe? – Update for January 22, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DARKEST HOUR FOR HOBBS ACT JUST BEFORE DAWN?

violent170315In the wake of last summer’s United States v. Davis Supreme Court decision, a number of federal defendants began asking whether attempting to commit or aiding and abetting a Hobbs Act robbery (18 USC § 1951) can be considered a “crime of violence” that will support an 18 USC § 924(c) conviction and mandatory add-on sentence for possession or use of a gun in the underlying offense. In other words, a crime that any reasonable person might think is violent may not be quite violent enough.

A primer: Under 18 USC § 924(c), anyone who commits a drug trafficking offense or a crime of violence while possessing a firearm is sentenced for the underlying crime, and then hit with a mandatory additional sentence of at least five year and up to life in prison. The minimum sentences increase if the defendant brandished the gun (minimum additional seven-year sentence) or actually fired it (minimum additional seven-year sentence). The hot arguments over the past decade have been what makes an underlying crime a “crime of violence,” with Davis being only the latest case to take up the question.

And yesterday, the Supreme Court heard arguments in Shular v. United States, which could bring the same kind of scrutiny to what constitutes a drug offense that Davis and its antecedents brought to crimes of violence.

Enough background… now for the news. Last week was not especially helpful to defendants hoping that Hobbs Act robbery might be found to be other than a crime of violence. Parts were nasty and brutish. But, mercifully, those may also be short.

First, the Supreme Court denied certiorari on a closely-watched petition filed in Mojica v. United States, which asked indirectly whether a § 924(c) conviction could be based on a conviction for aiding and abetting a Hobbs Act robbery. Mojica argued that aiding or abetting a Hobbs Act robbery was not a “crime of violence” after Davis, because viewed categorically, a Hobbs Act robbery could be committed without using or threatening force. Although there were early signs of Supreme Court interest in the case, brought by talented post-conviction attorney Brandon Sample, certiorari was denied on Jan. 10.

violence180508Meanwhile, the 7th Circuit rejected claims that an attempt to commit a Hobbs Act robbery is not a crime of violence under the elements test of § 924. Because a Hobbs Act robbery qualifies as a crime of violence, the Circuit said, and because a jury has to find the defendant intended to commit the robbery in order to convict him for attempt, attempted Hobbs Act robbery is a “valid predicate offense” for 924(c).

One ray of sunshine fell in the 9th Circuit, which in an unpublished opinion said, “We accept the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 USC 924(c)(3) in light of the Supreme Court’s decision in U.S. v Davis… Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence.”

Robber160229A second ray of light may have flickered the week before. An alert reader commended my attention to Judge Sterling Johnson’s fascinating holding in United States v. Tucker, handed down January 8th. A defendant was charged with conspiracy to rob a Brooklyn gas station and an attempt to rob the station, both Hobbs Act offenses. (How something so criminally prosaic as robbing a gas station became a federal offense is a question I’ll leave for another day.) He was also charged with two § 924(c) offenses, one for possessing a gun during the conspiracy to rob and another for possessing a gun during the attempt to rob. If convicted of the 924(c) offenses, defendant Tambhia Tucker would have had a minimum of ten extra years added to whatever he might get for the conspiracy and the attempted robbery.

Tambhia filed a pretrial motion to dismiss both 924(c) counts, arguing that after Davis, neither a conspiracy nor an attempt could support a 924(c) conviction. Judge Johnson agreed, holding that Davis made short work of the 924(c) connected to the conspiracy. As for the attempt, the Judge noted that in the 2nd Circuit, previous holdings have established that conducting surveillance of an intended robbery target, or even just obtaining a getaway car for use in a robbery, was enough to convict for attempted Hobbs Act robbery. The Judge concluded that

it is incorrect to say that a person necessarily attempts to use physical force within the meaning of 924(c)’s elements clause just  because he attempts a crime that, if completed would be violent… The defense reasonably interprets “surveillance” as the “minimum criminal conduct,” necessary to convict for attempted Hobbs Act robbery.  Thus, the question becomes whether a person conducting surveillance of a target with the intent to commit robbery necessarily uses, attempts to use, or threatens the use of force… A person may engage in an overt act — in the case of robbery, for example, overt acts might include renting a getaway van, parking the van a block from the bank, and approaching the bank’s door before being thwarted — without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No.

As Tucker has pointed out, in the Second Circuit, even less severe conduct, such as “reconnoitering” a target location or possessing “paraphernalia to be employed in the commission of the crime,” can constitute a substantial step and lead to an attempt conviction… Accordingly… this court finds that given the broad spectrum of attempt liability, the elements of attempt to commit robbery could clearly be met without any use, attempted use, or threatened use of violence.

Judge Johnson dismissed both 924(c) counts.

lastword200122This will hardly be the last word on an attempted robbery offense, but it certainly advances the debate.

Mojica v. United States, Case No. 19-35 (cert. denied Jan. 13, 2020)

United States v. Ingram, 2020 U.S. App. LEXIS 1531 (7th Cir. Jan 17, 2020)

United States v. Soto-Barraza, Case No. 15-10856 (9th Cir. Jan 17, 2020) (unpublished)

United States v. Tucker, 2020 U.S. Dist. LEXIS 3035 (E.D.N.Y. Jan. 8, 2020)

– Thomas L. Root

Hobbs Act Violence Finally Questioned, Then The Questioning Questioned – Update for December 18, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GREAT HOBBS ACT DECISION, BUT NOT SO FAST…

A detailed, well-reasoned 32-page district court decision holding that a Hobbs Act offense is not a crime of violence has been appealed by the U.S. Attorney for the Northern District of California.

violence180508Two months ago, a district court ruled that the Hobbs Act was not a crime of violence in the wake of Sessions v. Dimaya and United States v. Davis, because an alternate means of committing the crime was to instill “fear of injury, immediate or future” to the person or property of a victim. Fear of future injury to property does not equate to fear of use of physical force against a person, the district court held.

This reasoning, if it spreads, could bring down Hobbs Act offenses as crimes of violence. Apparently, the government fears so, because last week, it appealed the decision to the 9th Circuit. This is not a bad development, because a circuit holding that the Hobbs Act is not a crime of violence would probably force a Supreme Court decision on the issue.

United States v. Chea, 2019 U.S. Dist. LEXIS 177651 (N.D.Cal., Oct. 2, 2019)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

No Vacation for the Courts: Davis and Johnson Decisions Abound – Update for September 5, 2019

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THE DAVIS REPORT – AND A JOHNSON ‘CAREER OFFENDER’ DECISION


vacation190905Last week, typically the final slow week of summer, as vacationers return for a new school year and dreary office, was uncharacteristically busy for application of last June’s Supreme Court United States v. Davis decision.

In United States v. Barrett, the 2nd Circuit reluctantly held that a Hobbs Act conspiracy was not a crime of violence in light of Davis, despite the “murderous” nature of the particular conspiracy. For that reason, one of the defendant’s four § 924(c) convictions (for using a gun in a crime of violence) – the one related to the Hobbs Act conspiracy – was vacated. The Court sighed, “If there is anything Davis makes clear, it is the Supreme Court’s conviction that the substantially similar residual clause definitions for a violent crime in the Armed Career Criminal Act, in § 16(b), and in § 924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

In the 6th Circuit’s Knight v. United States decision, one of the defendant’s § 924(c) conviction was vacated because it was based on use of a gun during a kidnapping, but another based on assault and robbery of a postal employee under 18 USC § 2114 was held to require the use or threat of physical force. Thus, it is a crime of violence that supported the § 924(c) conviction.

Robber160229In United States v. Pervis, the 5th Circuit held that garden-variety bank robbery under 18 USC 2113(a) is a crime of violence under the § 924(c) “elements” test, and therefore supported the defendants’ multiple § 924(c) convictions.

The 5th Circuit also handed down a disappointing holding that an inmate found to be a career offender under the old mandatory Guidelines could not file a second-or-successive § 2255 motion to challenge the “career offender” status because of the Supreme Court’s 2015 Johnson v. United States holding. Bobbie London was convicted in 1996 of drug offenses and sentenced to 327 months as a Guidelines career offender. One of the prior convictions making him a career offender clearly no longer counts after Johnson.

vagueness160110Under Beckles v. United States, Bobbie would clearly not be entitled to relief if his sentence had been imposed under the advisory Guidelines. But he was sentenced nine years before United States v. Booker invalidated the mandatory Guidelines, so the judge had no choice but to hang the 327 months on him. Bobbie argued that a sentence determined by the vague language of the pre-Booker career offender residual clause violates due process.

The Circuit disagreed:

This asserted right, we think, is not dictated by Johnson; London’s assertion is more properly described as a “new right” to the extent that it is a right that has not yet been recognized by the Supreme Court. The Supreme Court has yet to decide whether a vagueness challenge can be raised under the pre-Booker Sentencing Guidelines. Instead, the Court’s decisions up until this point evince a distinction between statutes that fix sentences and Guidelines that attempt to constrain the discretion of sentencing judges…

In short, it is debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge’s discretion to a range within the statutory minimum and maximum sentences. Consequently, London does not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim is therefore not entitled to the benefit of a new statute of limitations.”

United States v. Barrett, Case No. 14-2641-cr (2nd Cir. Aug. 30, 2019)

Knight v. United States, Case No. 17-6370 (6th Cir. Aug. 27, 2019)

United States v. Pervis, Case No. 17-20689 (5th Cir. Aug. 30, 2019)

London v. United States, Case No. 17-30675 (5th Cir. Aug. 29, 2019)

– Thomas L. Root

SCOTUS Davis Decision Already Cutting Sentences – Update for July 16, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DAVIS IS ALREADY HELPING DEFENDANTS

The ink isn’t yet dry on the Supreme Court’s United States v. Davis decision, but it is already being applied by lower courts.

shortnorth190716The 6th Circuit didn’t do many favors to the Short North Posse when it upheld the convictions and sentences of five defendants who had been found guilty of all sorts of drug-related mayhem in Columbus, Ohio. Almost all of their appeal issues were shot down. Two of the five, however, won on a single issue, and it was a whopper.

For their participation in a home invasion and murder, Chris Harris and Cliff Robinson were convicted of murder by firearm during a crime of violence under 18 USC §§ 924(c) and (j)(1). The government, loving conspiracies as it does, based the pair’s § 924(c) convictions on conspiracy to commit a Hobbs Act robbery under 18 USC § 1951(a). After all, proving a conspiracy is much easier than proving a substantive act (like a robbery).

When the government charged Chris and Cliff and the rest of the Posse back in 2014, no one foresaw Johnson v. United States, the 2015 case in which the Supreme Court declared the residual clause of 18 USC § 924(e) unconstitutionally vagueness. In the Short North Posse appeal, the government was forced to admit that a conspiracy to commit a Hobbs Act robbery could only be a crime of violence under 18 USC § 924(c)(3)(B)’s residual clause. That clause holds that “a ‘crime of violence’ is a felony offense ‘that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

violence160110On appeal, Chris and Cliff argued that their 924(c) convictions had to be vacated because § 924(c)’s residual clause is unconstitutionally vague. Naturally, the government argued that Johnson had nothing to do with § 924(c)’s residual clause. However, eight days before the Short North Posse decision, the Supreme Court held in Davis that  the § 924(c) residual clause suffered from the same infirmity that Johnson invalidated. 

Davis conclusively held that a conspiracy to commit a violent act, no matter how violent the act, is not a “crime of violence” under 18 USC § 924(c). Thus, the Short North Posse decision held that “[b]ecause the Government relies only on that now-invalidated clause to support [Chris and Cliff’s] convictions under § 924(c), those convictions must be set aside.”

This is the first Davis win I have seen. There will surely be many to follow.

United States v. Ledbetter, 2019 U.S. App. LEXIS 19918 (6th Cir. July 3, 2019)

– Thomas L. Root

5th Circuit Holds Conspiracy to Rob Not a Violent Crime – Update for November 8, 2018

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924(c) AND HOBBS ACT ROBBERY GETS EVEN MORE CONFUSING

We have reported over the past few weeks that a number of Circuits have held, in the wake of Sessions v. Dimaya, that determining whether the crime underlying an 18 USC 924(c) conviction for using or carrying a gun during a crime of violence had to be conduct-specific or case-specific, as opposed to a hypothetical ordinary-case categorical approach.

Robber160229The 5th Circuit reminded us last week that, curiously enough, it is the outlier. In United States v. Lewis, the Circuit repeated its holding last summer in United States v. Davis that conspiracy to commit a Hobbs Act robbery cannot support a conviction for using or carrying a gun under 18 USC 924(c).

How long the 5th Circuit’s position lasts is anyone’s guess. The government filed a petition for writ of certiorari in Davis last month, arguing that the 5th Circuit’s use of the ordinary-case categorical approach in 924(c) cases is at odds with everyone else, and is just plain wrong. Given the stark circuit split and the importance of the issue, we think the government’s chance to win certiorari on the issue is better than even.

United States v. Lewis, Case No. 17-50526 (5th Cir. Nov. 1, 2018)

United States v. Davis, Supreme Court Case No. 18-431 (petition for certiorari filed Oct. 3, 2018)

– Thomas L. Root

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Another Circuit Rejects Categorical Approach to Hobbs Act/924(c) Case – Update for October 24, 2018

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1ST CIRCUIT HOLD 924(c) IMMUNE TO DIMAYA ATTACK

After Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence have hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent. Two weeks ago, we reported that the 2nd and 11th Circuits had shut down Dimaya attacks on 924(c). Last week, the 1st Circuit joined them.

gunfreezone170330Section 924(c) makes it punishable by a minimum five-year consecutive sentence, to use, carry, or possess a firearm in connection with a “crime of violence.” The “residual clause” of 924(c) defines “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses on vagueness grounds. 

Ishmael Douglas was convicted of a Hobbs Act robbery and a 924(c) count. He argued that under the categorical approach, which looks at the minimum conduct sufficient to violate the statute regardless of what the defendant may actually have done, his robbery could not be considered to be a crime of violence.

The 1st Circuit rejected Ishmael’s argument that 924(c)’s crime of violence definition is void for vagueness. “That is because,” the Circuit said, “the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas’s conspiracy to commit a Hobbs Act robbery qualifies as a ‘crime of violence’.” Agreeing with the 2nd and 11th Circuits, the 1st held that because 924(c) “requires consideration of a contemporaneous offense rather than a prior conviction, this residual clause does not raise either the practical or the Sixth Amendment right-to-trial concerns that led the Supreme Court to adopt the categorical approach in Taylor v. United States [and] Descamps v. United States.”

United States v. Douglas, Case No. 18-1129 (1st Cir. Oct. 12, 2018)

– Thomas L. Root

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We’ve Got the Shorts (Again) – Update for September 25, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, a few short takes from last week’s federal criminal news…

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CASE SHORTS

Hobbs Act Robbery “Violent Crime” in Another Circuit: The 1st Circuit last week held that Hobbs Act robbery is a crime of violence under 18 USC 924(c), a statute that sets extra punishment for carrying or using a gun during a crime of violence. The Circuit joins a number of others that have reached the same conclusion.

United States v. Garcia-Ortiz, Case No. 16-1405 (1st Cir. Sept. 17, 2018)

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bathsalt180925DEA Takes a “Bath” in Analogue Case: In a case full of organic chemistry and implications for the regulatory state, the 6th Circuit held that the DEA rules criminalizing the possession of a “positional isomer” of a banned drug require the rule of lenity to be applied. The rule of lenity is a principle of criminal statutory interpretation that requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. In this case, the defendant was tried for possessing ethylone, which under the DEA definition was a “positional isomer” of butylone, a scheduled drug. The problem was that under one of several accepted scientific definitions of “positional isomer,” ethylone is not a positional isomer of butylone at all. The Court ruled that where there was more than one definition, and the DEA rules were unclear what definition was to apply, the defendant gets the benefit of the less restrictive definition under the rule of lenity.

United States v. Phifer, Case No. 17-10397 (6th Cir. Sept. 21, 2018)

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Motion Claiming Juror Lied About Her Background is Structural Error: A couple of guys being tried for a pot-growing operation discovered after the trial that one juror’s son had been convicted of being a marijuana trafficker, a fact the juror concealed on her jury questionnaire. When the defendants raised the juror problem in a motion for new trial, the district court ruled there was no proof of prejudice resulting from of the juror’s false statement, because the overwhelming evidence would have convicted the defendants anyway. The 1st Circuit reversed, ruling that a biased juror would “deprive defendants of ‘basic protections’ without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Thus, it is what is known as a “structural error.” Generally, a constitutional error that does not contribute to the verdict is considered harmless, which means the defendant is not entitled to reversal. However, a structural error, one which “affects the framework within which the trial proceeds,” as defined in Arizona v. Fulminante, defies harmless error analysis. When a structural error is raised on direct review, the defendant is entitled to relief without any inquiry into harm. The Circuit granted French a new trial.

United States v. French, Case No. 16-2386 (1st Cir. Sept. 17, 2018)

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polygraph180925Written Judgment Cannot Add Anything to Terms Imposed at Sentencing: Lincoln R. Washington was sentenced on a conviction for failure to register as a sex offender. In the judgment form entering his sentence into the record, the district court added a supervised release term that Linc submit to polygraph testing, a requirement the court had not mentioned at the sentencing hearing. The 2nd Circuit ruled last week that imposing such a duty in the written judgment without doing so during the spoken sentence was an impermissible modification of the spoken sentence, notwithstanding the fact that the Presentence Report had made reference to the polygraph requirement.

United States v. Washington, Case No. 17-2841 (2nd Cir. Sept. 18, 2018)

LISAStatHeader2small– Thomas L. Root

Two Circuits Split on Whether Conspiracy to Be Violent Is Itself Violent – Update for September 20, 2018

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TWO CIRCUITS SPLIT ON HOBBS ACT CONSPIRACY AS VIOLENT CRIME

Two more federal circuits last week joined the chorus of appellate courts holding that a Hobbs Act robbery supports a conviction under 18 USC 924(c) for using a gun during crimes of violence, but they split on whether a conspiracy to commit Hobbs Act robbery is itself violent.

violence180508The 2nd Circuit continues to hold that the conspiracy to commit a violent crime is also a violent crime. The 5th Circuit, however, ruled that a conspiracy to commit Hobbs Act robbery can only be violent under the 924(c) residual clause, and it held that the residual clause is unconstitutionally vague in light of last April’s Supreme Court decision in Sessions v. Dimaya.

The split may set up a Supreme Court decision on conspiracy as a violent crime down the road, but probably not in the 2018-2019 term, which starts in two weeks.

United State v. Barrett, Case No. 14-2641-cr (2nd Cir. Sept. 10, 2018)

United State v. Davis, Case No. 16-10330 (5th Cir. Sept. 7, 2018)

– Thomas L. Root

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“Sort of Violent” Is Kind of Like “Sort of Pregnant” – Update for September 11, 2018

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HOBBS ACT ROBBERY ONLY SORT OF VIOLENT

In what may to some seem like hair-splitting, the 6th Circuit last week held that a Hobbs Act robbery under 18 USC 1951 is a crime of violence for purposes of 18 USC 924(c), but it is not a crime of violence for purposes of Guidelines 4B1.2 “career offender” status.

violence180508Desmond Camp robbed a dollar store at gunpoint. Because he had a prior 924(c) conviction, he faced a 300-month (25 year) mandatory minimum on the gun charge. But on top of that, Des had two priors that qualified as crimes of violence under Chapter 4B of the Guidelines. With the Hobbs Act robbery in his current case as a third violent offense, Des got 72 month stacked on top of the 300 months.

Last week, the 6th Circuit upheld the 924(c) conviction, joining every other circuit in America in holding that a Hobbs Act robbery was a crime of violence under that statute. However, the appeals court ruled, the Guidelines “career offender” section is different. The Circuit said that “an offense is a crime of violence under that clause if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The plain text of the Hobbs Act criminalizes robbery accomplished by using or threatening force against “person or property.” Though this may be sufficient under 924(c), it is not under the Guidelines. Given their definitional differences, “[t]here is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 USC 924(c), which includes force against a person or property, but not for purposes of USSG 4B1.2(a)(1), which is limited to force against a person.” Therefore, Hobbs Act robbery is not a crime of violence under the Guidelines’ use-of-force clause.

kindofpregnant180911So Hobbs Act robbery is only kind of violent.

Robbery is listed in the Guidelines as a crime that by definition is a crime of violence. But that, the Circuit said, does not matter. Recognizing that “most modern statutes limit robbery to force or threats against a person,” the court held that because Hobbs Act robbery encompassed “mere threats to property,” it was not categorically ‘robbery’ as used in the Guideline.

Not that all of this helps Desmond that much. On resentencing, he will still get somewhere between 300 and 372 months.

United States v. Camp, Case No. 17-1879 (6th Cir. Sept. 7, 2018)

– Thomas L. Root

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